Does the Fair Work Commission also think #TimesUp?

In her latest opinion piece, Fay Calderone highlights a recent Fair Work Commission case that seems to signal the Commission’s growing support for #TimesUp.

Last month I wrote that public support for the #TimesUp movement against sexual harassment has been echoed by employers, business leaders and slowly but surely, by our courts.

A recent Fair Work Commission (FWC) decision suggests the pace may be accelerating. It seems in a recent case the FWC has been more forgiving of proceduaral deficiencies than it has before, perhaps in favour of the greater good of creating healthy and respectful workplaces (my words, not FWC’s).

I’m not for a moment suggesting we dispense with proper investigations, procedural fairness and appropriate disciplinary procedures. There have been countless decisions where such deficiencies resulted in the FWC finding an otherwise valid reason for termination on substantive grounds to instead be harsh, unjust or unreasonable. This leads to hesitation by employers to act on conduct issues, including sexual harassment. This can create greater risks, perpetuate dysfunction and increase costs arising from the revolving door.

The case

Mr Sapienza was a banking courier when his employment was terminated with immediate effect due to inappropriate behaviour in dealing with clients. Three complaints were referenced in the termination letter, the most serious of which referred to Mr Sapienza acting unprofessionally and making young female employees of a client (ICE Design, a ladies clothing shop) feel very uncomfortable by allegedly:

saying words to the effect of: “When will you be leaving your boyfriend so we can run away together?”;

telling them they were good looking;

asking an 18 year old employee for her telephone number, and saying he had dated girls of her age;

telling the staff they had missed his birthday and asking “Where is my kiss?” whilst leaning over the counter and putting his cheek up to the girls’ faces;

getting physically close to female employees and putting his arms around their waists and on their hips; and

hugging employees.

Mr Sapienza acknowledged that after getting to know the client’s staff well he did hug the female employees on arriving and leaving the client’s premises, and they hugged him in return. He acknowledged he may have put his arm on the hip of one of the employees but did not recall this event. Mr Sapienza also accepted he may have asked the female employees for a kiss due to his “cheeky” nature and tendency to joke around.

Mr Sapienza’s explanation for this conduct was that, as an Italian, he was used to affection and that he also hugged staff at other client premises. He said he believed the physical encounters were consensual and friendly, and had he thought otherwise, it would have ceased immediately. Mr Sapienza said there was no sexual connotation in his conduct and at all times it was consensual and friendly.

The employer filed a Response Form but, extraordinarily, did not even show up for the hearing. As such there was no cross examination of Mr Sapienza, his evidence was accepted uncontested. It was alleged that due to the nature of the complaints, none of the clients were prepared to identify themselves for fear of retaliation – a suggestion that was vehemently denied by Mr Sapienza. His evidence was accepted on this issue.

The decision

Having heard Mr Sapienza’s evidence, FWC Deputy President Bull held:

“I find that the admission by Mr Sapienza that he did hug and ask for a kiss from women as young as 18 years was sufficient to substantiate that the respondent had a valid reason for the applicant’s termination of employment. Despite Mr Sapienza’s explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naive, to say the least.”

It was accepted Mr Sapienza was not provided with an opportunity to respond to the reasons for the termination clearly documented in the termination letters, and that he was summarily terminated without even a verbal conversation with his employer. As such, whilst the employer had little if any human resource management expertise, it was found the process was seriously lacking in procedural fairness.

Nevertheless and quite bullishly by the FWC’s standards (pun intended), it was held that in view of Mr Sapienza’s admissions in respect to his physical contact with young female staff of a client, that the summary dismissal was not harsh, unjust or unreasonable noting:

“This conclusion is reached having regard to the considerable age difference between Mr Sapienza and the female employees. The explanation provided by Mr Sapienza of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons. This is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment. If Mr Sapienza did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to.”

No doubt the news will spread to others, who ought to know as well.

Whilst this case provides encouragement for employers in dealing with sexual harassers, each case will turn on its facts and employers are cautioned to remain vigilant in the conduct of investigations, disciplinary procedures and in properly defending matters before the FWC. It does however provide yet another reminder that #TimesUp and the FWC is echoing the sentiment, quite surely in this case.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances

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Colin Dorber

I have real difficulty with this decision. If such laxity of process (especially the absence of any employer response) is to occur, and a judgment is made without proper evidence or reasons; or there is no application of procedural fairness, especially for this type of alleged harassment, (apparently because it had sexual overtones, it was treated differently to other types of matters e.g.: bullying, stealing; etc); then why can’t it apply across the board, in all matters? The moral of this story for an employer, appears to be, “Do nothing” and let the FWC work it out for you. Cheaper,… Read more »

This would have been a different outcome had he denied the conduct. Procedural fairness and process are important no denying that but let’s remember that he did not deny most of the allegations, instead tried to justify the conduct with a quite whimsical reason.

The decision by the FWC seems fairly extraordinary in case where the employer did not turn up to argue its case. However, if this an indication of a different approach by the FWC, focusing more on the merits of the decision rather than procedural fairness, I think the change is positive. The most critical element is whether there are substantive grounds for termination. There appears to be a history of FWC awarding payments to people whose conduct is outside reasonable standards, on the basis of procedural technicalities. I do not argue for the elimination of procedural fairness, which is an… Read more »

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11 months ago

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Dan

Colin, is spot on. It is highly dangerous and improper of the FWC to apply different sets of rules to cases depending on what the allegations are. That sort of arbitrary and biased decision-making is what exists in police-states and their accompanying kangaroo courts

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11 months ago

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Irving Warren

This must be one of the most procedurally wrong decisions made in the Commission. Reading SDP Bull’s decision (just click on ‘a recent case’ in article’s first paragraph), it is clear that the employer was given every opportunity to appear but deliberately failed to do so. Further the applicant (former employee) denied the bulk of the accusations against him, but had no expert representation to assist him. It would appear that the Commission, instead of upholding the application for relief, when the employer deliberately failed to appear, went on to question the applicant about his own submission and the detail… Read more »